Tuesday, October 06, 2015

The Second Amendment is Not a Charter for War on the Government

The American Revolution is bad precedent for today's
individuals-against-the-government reading of the Second Amendment. The state
governments sent representatives to Congress, which created a Continental Army
made up of troops recruited by the states. General Washington, the duly
designated commander, tried mightily to turn the rag-tag militias into well-regulated
military units.

The fundamental justification for creating this
revolutionary army was to protest against a monarchy which refused even token
representation to the colonies.It is
hard to imagine a scenario in the United States in which a legally constituted
authority had no democratic means for redress of grievances.

The Second Amendment protects the rights of citizens to join
a well-regulated militia, of which we have several levels.The idea that every citizen constitutes a
legitimate “militia of one” is as archaic as the idea of quartering troops in
citizens’ homes.

4 comments:

I am always interested in looking to the past for the explaination of things. An issue I have noticed among certain parts of the Christian spectrum, is the presence of anger and fear. I wonder if it is a kind of response to the perception of power. The right wing of the church seems full of anger at, and fear of, power. The left seems to love the anticipation of the use of power. All of this seems absent from the New testament. Some of it (particularly the anger) seems present in the Old Testament, and yet in the Old Testament the angry and powerful God seems to speak against fear and the worship of power. I don't know...

I agree with you to a certain extent. Certainly, the second amendment is not authorization for citizens to go to war against the federal government without cause. And what constitutes cause is a very high bar, indeed. Consider the following passages from the Constitutions of Massachusetts (1780), New Hampshire (1784), and Vermont (1793) (the three oldest state constitutions still in force)(:

Massachusetts: “Government is instituted for the common good, for the protection, safety, prosperity, and happiness of the people ...; therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government, and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it.”

New Hampshire: “[Right of revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”

Vermont: “Government for the people; they may change it. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, . . .; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”

This is what Americans were thinking, and what they feared, at the time of the adoption of the US Constitution. I suspect that if they heard President Obama assert that he could, by executive fiat, ignore Congress and legislate by executive order, they would say, "See, we told you.

So, the people have an inherent and unalienable right to resist by appropriate means--up to and including by armed revolt--when government becomes so oppressive as to subject the people to tyranny, with the caveat that all lesser means, e.g., voting in a new government, resort to the courts, calling for a constitutional convention, must be attempted first. The second amendment reserves to the people the right and the means to resist when their government goes to war on its citizens.

Back to your ignorance of what constitutes the militia. You write that, “The Second Amendment protects the rights of citizens to join a well-regulated militia, of which we have several levels,” and you then refer to something you call a “militia-of-one.” Such a concept is, by definition, impossible.

The first level of each State’s militia is, indeed, the National Guard. The problem is that by federal statute, the President may call all or part of a State’s National Guard into federal service, removing them from the command of the Governor and the control of the State legislature. As a result, nearly every State or Commonwealth provides by statute for the creation of a military force known as the militia, unorganized militia, State defense force, or some similar title, at any time that the President calls a part of or the entire National Guard into federal service. In fact, you, Professor, are potentially a member of the Kentucky State Defense Force (all citizens of Kentucky between the ages of 18 and 64, and those residents of the Commonwealth who have expressed an intent to become a citizen of Kentucky).

Inherent in a provision for calling out the militia, is having a means to arm the force. It is likely that the National Guard will have stripped the State or Commonwealth of military arms and equipment. That is what the the second amendment envisions and protects.